Labor: An employee’s Facebook pictures rightly cost him his job

Employers might “like” this: The National Labor Relations Board (NLRB) recently ruled on its first social media termination case, finding in favor of the employer. Specifically, in Knauz BMW, the NLRB determined that the employer did not violate the National Labor Relations Act (NLRA) when it fired a car salesman for posting pictures and comments documenting an incident that had taken place at its dealership to his Facebook page.

The salesman worked at Knauz BMW in Lake Bluff, Ill., where the BMW dealership owner also owned an adjacent Land Rover dealership. Two events occurred at these dealerships resulting in the employee posting pictures to his Facebook page.

First, the BMW dealership hosted an event in which it showcased one of its newly redesigned cars. The event was deemed special by the dealership and staff, as the car was considered the dealership’s “bread and butter” product. During a meeting a few days prior to the event, it was announced that hot dogs, chips and cookies would be served to the clients in attendance. The employee, in addition to other salesmen, expressed dissatisfaction with the choice of food, as they believed it did not match the caliber of the event. He later posted pictures on his Facebook page from the event. Sarcastic commentary regarding the food served at the event accompanied the pictures, including, “No, that’s not champagne or wine, it’s 8 oz. water. Pop or soda would be out of the question.”

On a separate occasion five days later, an accident occurred at the Land Rover dealership. On that day, a customer’s 13 year-old son sitting in the front seat of a car accidentally stepped on the gas, running over his father’s foot and driving down a small embankment before driving into a small pond. The employee posted photos of this accident to his Facebook page as well, again accompanied by sarcastic commentary regarding the child and the cost of the vehicle.

Knauz BMW representatives learned of the photos from both events after the employee posted pictures from the Land Rover dealership accident. They ultimately terminated his employment because of the pictures. According to the NLRB, “The question came down to whether the salesman was fired exclusively for posting photos of an embarrassing and potentially dangerous accident at an adjacent Land Rover dealership, or for posting mocking comments and photos with co-workers about serving hot dogs at a luxury BMW car event.”

The administrative law judge had determined that the latter activity might have been protected under the NLRA because “it involved co-workers who were concerned about the effect of the low-cost food on the image of the dealership and, ultimately, their sales and commissions.” He found, however, that the salesman was fired solely for the Land Rover photos. The NLRB agreed.

In the Knauz BMW representatives’ testimony, they indicated that the later-posted pictures from the Land Rover incident impacted their decision “more than anything,” as the incident was an embarrassment to the dealership. Memoranda created regarding the decision to terminate the salesman’s employment were also entered into evidence and indicated that the Land Rover pictures drove the dealership’s decision to fire the salesman.

As such, the NLRB found that the dealership did not violate the NLRA by firing the salesman for the pictures he posted to his Facebook page.

The case was not entirely a win for the dealership, however. The NLRB also considered a “courtesy” rule maintained by the dealership in its employee handbook regarding employee communications. The rule stated that “everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.” The NLRB found the language of the rule to be unlawful because employees “would reasonably believe that it prohibits any statements of protest or criticism,” even those protected by the NLRA.

Over NLRB Member Brian E. Hayes’ dissent (which found the rule to be “nothing more than a common-sense behavioral guideline for employees”), the board ordered the dealership to remove the unlawful rules from the employee handbook and furnish employees with inserts or new handbooks.

This decision serves as an important reminder to employers that the NLRB is placing focus on labor issues arising from employee use of social media. Employers are encouraged to ensure that their policies and practices related to employee use of social media do not violate the NLRA. More information and a link to the decision can be found here.

Contributing Author

John Kuenstler

John F. Kuenstler is a partner in the Chicago office of Barnes & Thornburg LLP and a member of the Labor and Employment Department. Mr....